Commentary to article 55. Powers of the investigating judge of the Criminal Procedure Code of the Republic of Kazakhstan  

1 In the course of pre-trial proceedings, the investigating judge, in the cases provided for by this Code, shall consider the following issues::

1) authorizing detention;

2) authorizing house arrest;

3) authorizing temporary suspension from office;

4) authorizing a ban on approaching;

5) authorizing an extradition arrest;

6) extension of terms of detention, house arrest, and extradition arrest;

7) application of collateral;

8) authorizing the seizure of property;

9) forcibly placing a person who is not in custody in a medical organization for conducting forensic psychiatric and (or) forensic medical examinations;

10) upon establishing the fact of mental illness, transfer a person who has previously been detained to a special medical organization providing psychiatric care adapted for keeping patients in strict isolation;

11) exhumation of a corpse;

12) the announcement of the international search for the suspect, the accused.

2 In the cases provided for by this Code, the investigating judge:

1) considers complaints about the actions (inaction) and decisions of the inquirer, the body of inquiry, the investigator and the prosecutor;

2) considers the issue of the sale of material evidence that is subject to rapid deterioration or prolonged storage of which, until the resolution of the criminal case, essentially requires significant material costs;

3) deposits the testimony of the victim and witness during the pre-trial proceedings;

4) imposes monetary penalties on persons who fail to perform or perform improperly procedural duties in pre-trial proceedings, with the exception of lawyers and prosecutors;

5) considers the issue of recovery of procedural costs in a criminal case on the recommendation of the prosecutor;

6) at the reasoned request of a lawyer participating as a defender, considers the issue of requesting and attaching to the criminal case any information, documents, and items relevant to the criminal case, with the exception of information constituting state secrets, in cases of refusal to execute the request or failure to make a decision on it within three days.;

7) at the reasoned request of a lawyer participating as a defender, considers the appointment of an expert examination if the criminal prosecution authority has unreasonably refused to satisfy such a request or no decision has been taken on it within three days.;

8) at the request of a lawyer participating as a defender, considers the issue of forcibly bringing to the body conducting the criminal trial a witness previously interviewed by him, ensuring the appearance of which is difficult to testify.;

9) performs other powers stipulated by this Code.

3 The decision of the investigating judge may be appealed or protested in accordance with the procedure provided for in Article 107 of this Code.

1 The commented article discloses the powers of the investigating judge as an official and establishes a specific list of issues considered by him. The investigating judge does not consider or resolve the issue of criminal liability of a person, he oversees the investigation regarding the legality and validity of restrictions on the constitutional rights of an individual. The object of such control is procedural actions that may restrict the constitutional rights of citizens in connection with criminal proceedings. The court's verification of the grounds for conducting appropriate investigative actions in criminal proceedings represents a higher level of guarantees for the observance of constitutional rights of the individual, since the court does not carry out the function of criminal prosecution and public prosecution, and therefore is not an interested entity in deciding on the conduct of investigative actions that limit the constitutional rights of citizens.

The law establishes a special procedure for obtaining a sanction for the conduct of an appropriate investigative action, and guarantees that it will be carried out only if there are certain grounds. For example, for the purpose of examination, a corpse may be exhumed (removed from a burial site) with the approval of an investigating judge, the reason for this is the need for subsequent investigative actions: examining the corpse, presenting it for identification, appointing an expert examination, obtaining samples for research.

A request to authorize a preventive measure (detention, house arrest, bail) or to carry out an investigative action (exhumation of a corpse, seizure of property) requires prior support by the prosecutor, and is considered by the investigating judge only if the prosecutor agrees with him. For example, a preventive measure in the form of detention must be previously reviewed and supported by a prosecutor, otherwise it cannot be considered by a court (Part 3 of Article 147 of the CPC). The difference between the judicial procedure for considering such issues and the prosecutor's procedure is that they are considered by a judge both without a court session and in a court session with the participation of interested parties in the case (Part 2 of Article 56 of the CPC).

2 The judicial procedure for considering complaints against actions (inaction) and decisions of the inquirer, the body of inquiry, the investigator and the prosecutor is not limited to the grounds listed in Part 1 of Article 106 of this Code. Other actions (inactions) and decisions taken by these bodies and officials that may damage the constitutional rights and freedoms of participants in criminal proceedings or impede citizens' access to justice may also be appealed in court. Such inspections by the court are carried out only upon complaints from interested persons. The court's consideration of complaints about the actions (inaction) of the prosecutor, investigator, inquirer is an expression of the constitutional right of citizens to judicial protection of their rights and freedoms (paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan).

For investigative actions not specified in paragraph 1 of Article 55 of this Code, but also requiring additional authorization - search, seizure of objects and documents containing state or other legally protected secrets, interception of communications or wiretapping and recording of negotiations, and others, the law does not require judicial authorization and allows their production on the basis of an investigator's decision, authorized by the prosecutor. However, this does not mean that the production of these investigative actions has been completely removed from judicial control. Such control turns from preliminary to subsequent, if there is a corresponding complaint (paragraph 1, part 2, art.55). The result of the review may be the recognition of an investigative action authorized by the prosecutor as illegal. The basic rule when considering such a complaint is that the court should not prejudge issues that, in accordance with this Code, may be the subject of judicial review when resolving a criminal case on its merits.

3 The decision of the investigating judge may be appealed by the suspect, the victim, their defenders and legal representatives, as well as protested by the prosecutor within three days from the moment of its announcement to the regional and equivalent court through the court that issued the decision, in accordance with the procedure provided for in Article 107 of this Code.: 1) on the authorization of a preventive measure in the form of detention of a suspect, extradition arrest, house arrest or extension of the period of detention, house arrest; 2) refusal to authorize the detention of a suspect, extradition arrest, house arrest, or refusal to extend the period of detention, house arrest; 3) cancellation or refusal to cancel an authorized preventive measure; 4) imposition or refusal to seize property; 5) exhumation or refusal to 6) declaring an international wanted list or refusal to do so; 7) forcibly placing a person in a medical organization for forensic medical and (or) forensic psychiatric examination or refusal to do so; 8) on the transfer of the pledged object to the state's income or refusal to do so; 9) on the consideration of complaints about actions (inaction) and decisions of the prosecutor, criminal prosecution authorities.

In accordance with part 9 of Article 107 of this Code, an appeal against an authorized extradition arrest is carried out in accordance with the procedure provided for in Article 592 of this Code. Verification of the legality and validity of the decision to extradite a person (extradition) is carried out by a judge of the Supreme Court of the Republic of Kazakhstan in an open court session.

Commentary to the Criminal Procedure Code of the Republic of Kazakhstan from the Supreme Court of the Republic of Kazakhstan

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